612 F.

2d 794

Maria TOVAR, Petitioner,

v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
No. 79-1086.

United States Court of Appeals,

Third Circuit.
Argued Sept. 6, 1979.
Decided Jan. 14, 1980.

Eric J. Bal, Union, N. J. (argued), for petitioner.

Chester J. Halicki, Washington, D. C. (argued), Robert S. Forster, Jr.,
Asst. U. S. Atty., Philadelphia, Pa., Philip Wilens, James P. Morris,
Washington, D. C., for respondent.
Before ADAMS, HUNTER and HIGGINBOTHAM, Circuit
Judges.OPINION OF THE COURT
JAMES HUNTER, III, Circuit Judge:

1. Maria Tovar petitions this court to review a decision of a special inquiry

officer of the Immigration and Naturalization Service, made pursuant to 8
U.S.C. 1254(a) (1976), 1 which was approved by the Board of Immigration
Appeals in dismissing Tovar's appeal. The Immigration and Naturalization
Service denied her application for suspension of deportation because she failed
to establish the statutory prerequisite of extreme hardship. This petition presents
two issues for review. The first is a question of statutory construction: whether
the Immigration and Naturalization Service was correct as a matter of law in
determining that the hardship to the grandchild was irrelevant to the extreme
hardship inquiry conducted under the deportation suspension provision. 8
U.S.C. 1254(a)(1) (1976). The second issue for review is whether the
administrative record supports the factual finding of the Board of Immigration
Appeals when it hypothetically addressed the issue of the hardship resulting to
the grandchild and found that his adjustment would probably not be severe.

Courts of Appeals have jurisdiction to review final deportation orders against

aliens within the United States. 8 U.S.C. 1105a(a) (1976). The denial of an
application to suspend deportation, when made in the course of a hearing
conducted pursuant to 8 U.S.C. 1252(b) (1976), is a final order of deportation
within the meaning of the Immigration and Naturalization Act and therefore
this court has the power to review the Board's decision. Cheng Fan Kwok v.
Immigration and Naturalization Service, 392 U.S. 206, 88 S.Ct. 1970, 20
L.Ed.2d 1037 (1968); Foti v. Immigration and Naturalization Service, 375 U.S.
217, 220, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963).
2

* 3. The petitioner is a native and citizen of Colombia, who last entered the
United States on October 17, 1970. She overstayed the time period specified in
her visa. Tovar lives with a grandchild, Christian, who is the illegitimate son of
Tovar's daughter. Subsequent to this child's birth, Tovar's daughter married a
man who was not Christian's father. Although that marriage produced two
additional offspring, Christian was excluded from participating as a family
member of that household. Tovar assumed the role of a surrogate mother and
raised her grandchild from infancy as her own child. Christian, five years old at
the time of the deportation hearing, still lives with Maria Tovar.

4. Maria Tovar concedes deportability. In accordance with 8 U.S.C. 1254(a)

(1) she has applied for a suspension of deportation and an adjustment of her
status to that of an alien lawfully admitted for permanent residence. This relief
is discretionary and an alien applying for such relief bears the burden of
establishing the statutory prerequisites. Pelaez v. Immigration and
Naturalization Service, 513 F.2d 303, 305 (5th Cir.), Cert. denied, 423 U.S.
892, 96 S.Ct. 190, 36 L.Ed.2d 124 (1975). To be eligible for a suspension of
deportation, an alien must show that he meets three requirements: (1)
continuous physical presence within the United States for at least seven years
immediately preceding the date of application for suspension of deportation, (2)
good moral character throughout that period, (3) extreme hardship which would
result from deportation of the alien. There is no dispute that Tovar meets the
physical presence and good moral character requirements. As to the final
statutory requirement, however, the Immigration and Naturalization Service
found that Tovar's deportation would not constitute extreme hardship within the
contemplation of the statute and that any hardship resulting to her grandchild
was not pertinent to the extreme hardship inquiry. 8 U.S.C. 1254(a)(1)
(1976). Therefore, she was deemed ineligible for the discretionary exercise of a
stay of deportation.

5. In reviewing an agency order, a court of appeals is limited to consideration of

the administrative record upon which the deportation order is based. 8 U.S.C.

1105a(a)(4) (1976); Vassiliou v. District Director of Immigration and

Naturalization Service, 461 F.2d 1193, 1195 (10th Cir. 1972). The agency's
findings of fact, "if supported by reasonable, substantial, and probative evidence
on the record considered as a whole" are conclusive. 8 U.S.C. 1105a(a)(4)
(1976); Bastidas v. Immigration and Naturalization Service, 609 F.2d 101 at
104 (3d Cir.) (1979); Wong Wing Hang v. Immigration and Naturalization
Service, 360 F.2d 715, 717 (2d Cir. 1966) (Friendly, J.). See Foti v.
Immigration and Naturalization Service, supra, 375 U.S. at 228-29 & n.15, 84
S.Ct. 306. Federal courts, however, have plenary review of questions of law,
including questions of statutory construction and interpretation. Sec. 10(e) of
the Administrative Procedure Act; 5 U.S.C. 706 (1976).
II
A. Construction of the Statute
5

6. To be eligible for suspension of deportation, an alien must show that his

deportation would result in extreme hardship to himself, or to "his spouse,
parent, or child, who is a citizen of the United States." 8 U.S.C. 1254(a)
(1976). The special inquiry officer assessed the hardship that would befall
Tovar and determined that deportation would not result in extreme hardship to
her.2 He did not evaluate the hardship that Tovar's deportation would cause her
dependent grandchild. In its opinion dismissing Tovar's appeal, the Board of
Immigration Appeals reached the issue of the grandchild's hardship and
determined that it was not pertinent. The statute does not specifically
denominate grandchildren among those family members whose hardship, if
extreme, would permit suspension of an alien's deportation. Nevertheless, we
conclude that on these facts, the Immigration and Naturalization Service erred
in construing the statute to exclude consideration of the grandchild's hardship.

7. We believe that the section of the Immigration Act setting forth the
eligibility requirements for suspension of deportation should be read in light of
Congressional purpose. See Kamheangpatliyooth v. Immigration and
Naturalization Service, 597 F.2d 1253 (9th Cir. 1979). The language of the
suspension provision evinces a legislative purpose to protect immediate
members of an alien's family from the hardship attending her deportation. See
Pelaez v. Immigration and Naturalization Service, 513 F.2d 303, 305 (5th Cir.
1975). To accomplish that goal, the statute permits the Immigration and
Naturalization Service to suspend deportation of an illegal alien after evaluating
the hardship that would result to a spouse, parent or child, if the resulting
hardship would be extreme.
8. Because Tovar's relationship to her grandchild so closely resembled that of

8. Because Tovar's relationship to her grandchild so closely resembled that of

parent to child, we hold that the hardship to this grandchild from deportation of
Tovar should be considered in determining whether Tovar is eligible for a stay
of deportation. Cf. Vergel v. Immigration and Naturalization Service, 536 F.2d
755, 757 (8th Cir. 1976). In Vergel, the court suggested that the hardship of a
child who had been nursed by an alien about to be deported was pertinent to the
extreme hardship determination. Although Christian is the grandchild and not
the child 3 of Maria Tovar, nevertheless the two comprise a family and in fact
share the relationship of mother to child. Christian is emotionally attached and
financially dependent on Maria Tovar. Testimony at the hearing indicated that
he thought of her as his mother, despite his having been informed of the
identity of his natural mother. Furthermore, we recognize that grandmother
headed households are worthy of fundamental respect. See Moore v. City of
East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1976).4
Therefore we believe it proper to extend the same privilege that the suspension
provision affords the nuclear family to this grandmother-headed family.
9. Accordingly, we will remand to the Immigration and Naturalization Service
so it may determine whether Tovar's deportation would cause extreme hardship
to her grandchild Christian. After the special inquiry officer has squarely faced
the question of what degree of hardship the deportation of Tovar would pose
for this grandchild, Tovar may then be eligible to have her deportation
suspended, and the special inquiry officers5 would be free to exercise his
discretion.

9B. The Findings of the Board of Immigration Appeals

10

10. One issue requires further attention: the Board of Immigration Appeals'
conclusion, after reviewing the record of the deportation hearing, that
Christian's adjustment would not be severe. Our scope of review is limited to
whether the Board's finding is "supported by reasonable, substantial, and
probative evidence on the record considered as a whole." 8 U.S.C. 1105a(a);
Bastidas v. Immigration and Naturalization Service, 609 F.2d 101, at 104 (3d
Cir.) (1979).

11

11. After rejecting the legal relevance of the grandchild's hardship, the Board
summarily concluded that even "assuming arguendo that the effect of the
respondent's deportation on this child could be considered, the testimony of his
mother at the deportation (hearing) indicated that the adjustment probably
would not be severe." Cert.Ad.Rec. at 5. Our review of the transcript of the
deportation hearing leads us to conclude that the testimony 6 does not support
the inference drawn by the Board. We are concerned that because the Board
thought that the legal standard in determining extreme hardship excluded from

consideration any hardship to the grandchild, less than full evaluation of

Christian's hardship may have been undertaken. We think it appropriate for the
Immigration and Naturalization Service to make a fresh determination with the
knowledge that the grandchild's hardship is legally relevant.
12

12. Accordingly, we will vacate the order denying suspension of deportation

and remand this case to the Board of Immigration Appeals for further
proceedings consistent with this opinion.

8 U.S.C. 1254(a)(1) provides that "the Attorney General may, in his

discretion, suspend deportation and adjust the status to that of an alien lawfully
admitted for permanent residence." The alien must apply for suspension of
deportation and be a person who
"has been physically present in the United States for a continuous period of not
less than seven years immediately preceding the date of such application, and
proves that during all of such period he was and is a person of good moral
character; and is a person whose deportation would, in the opinion of the
Attorney General, result in extreme hardship to the alien or to his spouse,
parent or child, who is a citizen of the United States . . . ."

Cert.Ad.Rec. at 11

8 U.S.C. 1101(b)(1) defines the term "child" to include unmarried persons

under the age of twenty-one. Legitimate children, stepchildren, illegitimate
children and adopted children may all be treated as within the meaning of
"child" if various requirements are met. Common requirements include tender
age, See id. at (b)(1)(B), (E), and that the child be within the custody of the
parent(s), See id. at (b)(1)(C), (E). Christian in many ways fits the profile of
what the statute describes as "child."

In Moore v. City of East Cleveland, the Supreme Court took the occasion to
voice this country's reverence for all family units:
Ours is by no means a tradition limited to respect for the bonds uniting the
members of the nuclear family. The tradition of uncles, aunts, cousins And
especially grandparents sharing a household along with parents and children
has roots equally as venerable and equally deserving of constitutional
recognition.
431 U.S. at 504, 97 S.Ct. at 1938 (emphasis supplied).

We believe that our construction of the statute to include a grandchild's

hardship when the grandmother has acted In loco parentis is consistent with the
underlying premise of Moore.
5

For a recital of the delegation of the statutory authority vested in the Attorney
General pursuant to 8 U.S.C. 1254(a), See Bastidas v. Immigration and
Naturalization Service, 609 F.2d 101 at 103, n. 1 (3d Cir.) (1979)

The testimony of Tovar's daughter at her mother's deportation hearing

concerning the hardship to Christian was limited and did not indicate with a
measure of probability that Christian's adjustment would not be severe:
Q: If you took Christian into your home, would You have any problems?
(emphasis added).
A: I think no.
Q: Would your husband object to his being part of your family?
A: Sir, I don't know. My child lives with my mother. If the child will be alone,
maybe the husband will ask the child in our family. . . .
Immigration Judge: She already stated that, from her previous testimony,
apparently there is some sort of problem from what I gather between her
husband and the mother and the reason the child is therefore staying with the
mother and she says that she don't know maybe if her mother wasn't there, is
what she said, the child, the husband may accept the child so I assume that
there is some other kind of family problem. . . .
Q: If your mother were deported and Christian were placed in your home would
Christian have emotional problems? . . .
A: I think yes, sir, because the child is very very attached to my mother. The
child is living with my mother, very attached to her.
Cert.Ad.Rec. at p. 27-28.
This testimony does not support the Board's conclusion that the adjustment
problems that Christian would face probably would not be severe.